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Tuesday, 4 April 2017

Whether right of private defence is available even if there is no actual commission of offence?

Having regard to the above, we are of the view that the appellantreasonably apprehended a danger to his life when the deceased and hisbrothers started strangulating him after pushing him to the floor.As observed by this Court a mere reasonable apprehension is enough to putthe right of self-defence into operation and it is not necessary that thereshould be an actual commission of the offence in order to give rise to theright of private defence. It is enough if the appellant apprehended that suchan offence is contemplated and is likely to be committed if the right ofprivate defence is not exercised.REPORTABLEIN THE SUPREME COURT OF INDIACRIMINAL APPELLATE JURISDICTIONCRIMINAL APPEAL No. 1548 OF 2011SURESH SINGHAL V STATE (DELHI ADMINISTRATION) Dated:February 02, 2017

Citation:(2017)2 SCC 737

This appeal is directed against the judgment dated 01.09.2010 ofthe Delhi High Court in Criminal Appeal No.232 of 1997 filed by theappellant-Suresh Singhal against his conviction and the sentence awarded tohim. The appeal filed by the State seeking death penalty for the appellantand against the acquittal of Roshal Lal was dismissed by the High Court inCriminal Appeal No.226 of 1997.

THE INCIDENT2. The appellant was prosecuted for the incident that occurred on the04.03.1991 at about 5.15 pm. The deceased-Shyam Sunder and Kishan Lal,both brothers, were killed in the incident at the office of Lala Harkishan Dasslocated at Rajendra Park, Nangloi. The statement of Lala Harkishan Dasswas recorded. He had arranged a meeting for settling a dispute that hadarisen between the appellant and the deceased. The appellant hadapparently agreed to sell a property through a property dealer, namely thedeceased-Shyam Sunder. The purchasers were the Gurdaspur Party.Apparently there was some misunderstanding between the parties andeventually a meeting was arranged at the office of Lala Harkishan Dass.3. The deceased-Shyam Sunder and his two brothers Hans Rajand Kishan Lal were already at the office of Lala Harkishan Dass. Theappellant-Suresh Singhal and his father Pritpal Singhal accompanied byanother man (Roshan Lal) reached the office at about 5.00 pm. As soon asthey entered the office, there was an altercation between the appellant andthe deceased. The appellant took out his revolver and shot Shyam Sunder.Thereafter, the appellant and his father Pritpal Singhal who had cometo the office in a car, left the car behind and fled the place in the car ofanother visitor.In the incident Shyam Sunder and Kishan Lal were killed.

4. The Sessions Court convicted the appellant for the murder of ShyamSunder under Sections 302 and 304 read with Section 34 of Indian PenalCode (hereinafter referred to as ‘IPC’) for the murder of Kishan Lal. Hisco-appeallant-Pritpal Singhal who died on 28.03.2007, during the pendencyof the suit was also convicted under Section 307 read with Section 34 of IPCfor attempting the murder of Hans Raj. The third accused Roshan Lalwas acquitted.WITNESSES TO THE SHOOTING5. The actual shooting was claimed to have been witnessed by LalaHarkishan Dass (PW-2), Hans Raj (PW-3) and Raj Kumar (PW-4). LalaHarkishan Dass (PW-2) was declared hostile. Hans Raj (PW-3) is the injuredeye-witness, and the brother of the deceased-Shyam Sunder.6. Two distinct versions about the actual shooting have arisen from thedeposition of the witnesses. One version is that there was no scuffle beforewhich the appellant fired at the deceased. The other is that there was ascuffle in which the appellant was attempted to be strangulated.NO SCUFFLE7. The first version is mainly deposed to by Hans Raj (PW-3). Hans Raj isthe brother of the deceased. He went to the office of Lala Harkishan Dasswhere the parties had decided to meet to resolve the dispute. He deposedthat the moment the deceased entered the room, the appellant asked his

brother-the deceased, to tell him what had happened yesterday. Thedeceased got up and responded to it by asking the appellant whether he hadcome to settle the dispute or to quarrel. The appellant said that there won’tbe any quarrel but something different would happen. This witness saidthat “he then took out a revolver from his coat pocket and fired at mybrother-Shyam Sunder.” This is all that the witness stated about the actualshooting. Thereafter this witness stated that he tried to catch hold of theappellant but the appellant exhorted his father to finish all the brothers.Thereafter, Pritpal Singhal took out a revolver from his pocket and boththe appellant as well as Pritpal Singhal started firing at him and hisbrother-Kishan Lal. In the firing he was injured and received one bullet inhis stomach. This version significantly does not speak of any scufflepreceding the shooting. In the cross-examination later on, he specificallystated in the cross-examination that there was no scuffle in which thedeceased tried to strangulate the appellant. This witness thus clearly statedthat the appellant shot the deceased as soon as he rose.8. The narration of this witness is significant since he suggests that thedeceased was sitting when the appellant entered the room and aftera menacing exchange of words, shot the deceased as soon as he got up.9. Another witness Tarsem Kumar (P.W. 30) stated in his deposition that“at that time, Shyam Sunder was sitting by my side on a sofa and he said

that he has been shot at with a bullet. I did not hear anything except this.I did not even hear the noise of firing”.10. PW-30 in his deposition suggests that the appellant shot him from thefront as he got up. This throws a doubt on the credibility of this witnessbecause the entry wound of the bullet is on the back of deceased, and not inthe front. Thus we are not inclined to accept the narration of PW-30 andPW-3, who have both stated that the appellant fired at the deceasedfrom the front.SCUFFLE11. The other version deposed by Subhash Chand Mahajan (PW-23) andSarover Kumar (PW-27) is that there was a scuffle between the threebrothers i.e. deceased-Shyam Sunder, Kishan Lal and Hans Raj on one hand,and the appellant-Suresh Singhal on the other hand. The deceased tried tostrangulate the appellant as they fell during the struggle, and thereafterpulled out his gun and shot the deceased. He then exhorted his father toshoot the others.12. Subhash Chand Mahajan (PW-23) stated in his cross examination thathe saw the appellant on the floor being strangulated. The witness statedthat there was a scuffle and thereafter a shot fired.13. The other witness Sarover Kumar (PW-27) belongs to the GurdaspurParty and as such is not a direct party to the dispute between the appellant

and the deceased. He stated that immediately after the appellant-SureshSinghal and Pritpal Singhal arrived, there was a scuffle between theappellant-Suresh Singhal on one hand and the three brothers including thedeceased-Shyam Sunder on the other. He deposed that there were shoutsof “Chhodo Chhodo” during the scuffle and then the deceased-Shyam Sundercried “Hai Mujhe Goli Lag Gayi” i.e. ‘I have been shot’. He stated that heimmediately ran out of the side gate along with the other persons and hidbehind the cement bags. The testimony of this witness has remainedunshaken in cross-examination. In fact in cross-examination, the witnessstated that a scuffle took place within the twinkling of an eye after theappellant and the others entered the office.14. The stark difference between the two versions is that of the scufflepreceding the incident of the shooting. Whether there was a scuffle or notdetermines the tenability of the main submission advanced by Mr. SushilKumar, the learned senior counsel, that the appellant acted in the exercise ofhis right of private defence and shot the deceased. It may be noted that,both the Sessions Court and the High Court have found that there was asudden fight in the course of which a common intention developed betweenthe appellant and his father to cause the death of the deceased-ShyamSunder and Kishan Lal.15. Having closely examined the evidence, we are of the view that in facta scuffle did take place. In this scuffle, Shyam Sunder alone, or along with6Page 7his two brothers tried to strangulate the appellant-Suresh Singhal. Theappellant reached for his revolver, upon which the deceased released himand turned around to run away. At this point the appellant shot at him,either still lying down or having got up. This probablizes and explains thefact that it was not a close shot and that the bullet entered the body belowthe right shoulder of the deceased at the back and travelled upwards.NOT A CLOSE SHOT16. The shot in question was obviously not a close shot. There was noblackening, tattooing or charring around the bullet entry wound. In fact, thedoctors specifically stated that the shot was fired from a distant range. It iswell known that the shooting from close quarters chars or blackens the body.It would be germane to quote from “Modi’s Textbook of Medical Jurisprudence andToxicology (25th Edition). p. 631” with reference to the above:-“When there is a close shot that is in the range of powder blast andthe flame is within one to three inches, for small arms there is acollar of soot and grease (if present on the bullet) around thecircular wound of entry. Singed hairs may be seen if the body isnot covered with clothing. Partially burnt and unburnt grains ofpowder are blasted into the skin causing a tattooing which cannotbe easily wiped off. Wadding, pieces of clothing or other debrismay be found lodged in the wound. The entry wound of a revolverfired very near or in contact with the skin is generally stellate orcruciform in shape instead of being circular. When it is firedbeyond a distance of 12 inches, there are no powder marks of sootor heat effects around the wound. If the revolver is fired close tothe skin but held at an angle, the smudging and tattooing is limitedonly to one side of the bullet hole. The wound of exit is often largerthan the wound of entrance, and its edges are irregular and everted,but free from scorching and tattooing.”7Page 817. The statement of the doctor that it was shot from a distant range hasnot been challenged in the cross-examination. There is another reasonwhich lends credence to the assumption that the shot was not fired fromclose quarters, and that is the fact that the bullet did not exit the body.Indeed this happens when the bullet being fired from a distance loses itsvelocity. We have made these observations to support the inference thatthere is no reliable evidence to show that the appellant shot the deceased atclose quarters when he was being strangulated. The shot was inall probability fired when the deceased released the appellant during thescuffle, and on seeing him reach for his gun moved away to escape afterturning around.RECOVERY AND BALLISTIC EXPERT REPORT18. We must at this stage advert to the recovery from the scene andthe ballistic expert report. Altogether 7 bullets were fired, and noempty cartridge cases were recovered from the scene of the crime. Oneempty .32 bore Smith & Wesson revolver was recovered from SureshSinghal. One .32 bore Smith & Wesson revolver was recovered from PritpalSinghal. One .22 HP rifle and nine empty cartridges were also recoveredfrom the roof of Pritpal Singhal’s house. One .32 bullet was taken out fromthe body of deceased-Shyam Sunder. Three .32 bullets were recovered fromthe body of deceased Kishan Lal.8Page 919. The appellant and his father both had licensed revolvers but theforensic report does not definitely disclose that the bullets came from thelicensed guns belonging to the appellant and Pritpal Singhal.20. Products of combustion of cartridge powder were detected only in thebarrel of the .32 revolver recovered from Pritpal Singhal. Products ofcombustion of cartridge powder could not be detected in the barrel of therevolver recovered from the appellant or the .22 HP rifle. All the .32cartridge cases were found to have been fired from a single .32 calibre firearm, but none of them from any of the two .32 revolvers which were seized.The .32 lead bullet recovered from the body of deceased was fired from .32calibre fire arm. The reports states that this bullet could have been firedfrom the revolver seized from Pritpal Singhal, and not from the revolverseized from the appellant. However, a definite opinion was not given for thewant of sufficient characteristic marks on the crime bullets. The threebullets recovered from the body of Kishan Lal could not be linked with any ofthe .32 revolvers seized. The ballistic expert report shows that none of thebullets were recovered from the .32 weapon seized from the appellant.It is thus not possible to determine the weapon that was used by theappellant–Suresh Singhal.PRIVATE DEFENCE21. With regard to the evidence that the appellant was being assaultedand in fact attempted to be strangulated, it needs to be considered whether

the appellant shot the deceased in the exercise of his right of privatedefence. Such a right is clearly available when there is a reasonableapprehension of receiving the injury.22. The right of private defence is contemplated by Section 97 of IPCwhich reads as follows:-“Section 97. Right of private defence of the body andof property.— Every person has a right, subject tothe restrictions contained in section 99, to defend—First — His own body, and the body of any otherperson, against any offence affecting the humanbody;Secondly —The property, whether movable orimmovable, of himself or of any other person,against any act which is an offence falling under thedefinition of theft, robbery, mischief or criminaltrespass, or which is an attempt to commit theft,robbery, mischief or criminal trespass.”In Darshan Singh vs. State of Punjab and Another1, this court laiddown the following principles which emerged upon the careful considerationand scrutiny of a number of judgments as follows:-“58. The following principles emerge on scrutiny ofthe following judgments:(i) Self-preservation is the basic human instinct andis duly recognised by the criminal jurisprudence of allcivilised countries. All free, democratic and civilisedcountries recognise the right of private defencewithin certain reasonable limits.1(2010) 2 SCC 333

(ii) The right of private defence is available only toone who is suddenly confronted with the necessity ofaverting an impending danger and not ofself-creation.(iii) A mere reasonable apprehension is enough toput the right of self-defence into operation. In otherwords, it is not necessary that there should be anactual commission of the offence in order to give riseto the right of private defence. It is enough if theaccused apprehended that such an offence iscontemplated and it is likely to be committed if theright of private defence is not exercised.(iv) The right of private defence commences as soonas a reasonable apprehension arises and it iscoterminous with the duration of such apprehension.(v) It is unrealistic to expect a person under assaultto modulate his defence step by step with anyarithmetical exactitude.(vi) In private defence the force used by the accusedought not to be wholly disproportionate or muchgreater than necessary for protection of the personor property.(vii) It is well settled that even if the accused doesnot plead self-defence, it is open to consider such aplea if the same arises from the material on record.(viii) The accused need not prove the existence ofthe right of private defence beyond reasonabledoubt.(ix) The Penal Code confers the right of privatedefence only when that unlawful or wrongful act isan offence.(x) A person who is in imminent and reasonabledanger of losing his life or limb may in exercise ofself-defence inflict any harm even extending to deathon his assailant either when the assault is attemptedor directly threatened.”

23. Having regard to the above, we are of the view that the appellantreasonably apprehended a danger to his life when the deceased and hisbrothers started strangulating him after pushing him to the floor.As observed by this Court a mere reasonable apprehension is enough to putthe right of self-defence into operation and it is not necessary that thereshould be an actual commission of the offence in order to give rise to theright of private defence. It is enough if the appellant apprehended that suchan offence is contemplated and is likely to be committed if the right ofprivate defence is not exercised.24. It was argued by Mr. P.K. Dey, learned counsel for the State, that thedeceased and his brothers were unarmed and there was no need for theappellant to have used the gun. Given the fact that the deceased and theothers were attempting to strangulate the appellant, it would have beenunrealistic to expect the appellant to “modulate his defence step by stepwith any arithmetical exactitude”. This Court has held that a person who isin imminent and reasonable danger of losing his life or limb may in exerciseof self-defence inflict any harm even extending to death on his assailanteither when the assault is attempted or upon being directly threatened.We are inclined to think that the appellant had been put in such a position.25. We have no doubt that the appellant exceeded the power given to himby law in order to defend himself but we are of the view that the exercise ofthe right was in good faith, in his own defence and without premeditation.12Page 13In this regard, it would be apposite to reproduce the observation of SessionsCourt which is as follows:-“Since I feel that the prosecution witnesses arehiding something at the introduction stage of thestory, I will not impute a prior concert or intention tothe accused. I have no doubt that tempers got fayedat the spot itself and whatever happened was not aresult of prior meeting of minds amongst theaccused persons.”26. The High Court has also observed as follows:-“In the facts and circumstances of the case, we findit difficult to accept that the murder of ShyamSunder and Kishan Lal had been preplanned. HadSuresh Singhal and his father late Pritpal Singhalpreplanned the murder, they would have chosensome other place to execute their plan and would nothave done it in the office of the informant, in thepresence of a number of persons. The convictSuresh Singhal and his father late Pritpal Singhalknew that a number of persons including theinformant Lala Harkishan Dass and the members ofthe Gurdaspur Party would be present in the office ofthe informant on that day and in the event ofKrishan Lal and his brother(s) having murderedthere, all these persons would be eye-witnessesagainst them. It is, therefore, highly unlikely thatthey would have planned to commit murders at thatplace. It is true that both of them were armed withloaded revolvers when they came to the office of theinformant on that day. But that in our view, in thefacts and circumstances of the case, does notnecessarily mean that they had preplanned themurder, though it does show that they were fullyprepared to meet any eventuality and go to any13Page 14extent including use of the firearms they werecarrying with them.”27. The homicide in the present case thus does not amount to murder inthe view of Exception 2 to Section 300 of IPC2. We agree with theobservations of the Sessions Court and the High Court that the homicide wasnot the result of premeditation but rather, as the evidence suggests, theshooting took place in a sudden fight in the heat of passion. It is not possibleto accept the argument of the prosecution that the appellant took undueadvantage of the situation and used the gun even though thedeceased-Shyam Sunder and his brothers were unarmed. Given themurderous assault on the appellant and the possibility of being attackedagain, may be with arms or may be with the help of the other persons, it isnot possible to attribute undue advantage to have been taken by theappellant. In such a situation it would be unrealistic to expect the appellantto calmly assess who would have the upper hand before exercising his rightof private defence.28. In the circumstances of the case and the findings of the Sessions Courtand the High Court, we find that the homicide falls within Exception 4 toSection 300 of IPC3 and does not amount to murder.2“Exception 2. – Culpable homicide is not murder if the offender, in the exercise in goodfaith of the right of private defence of person or property, exceeds the power given to himby law and causes the death of the person against whom he is exercising such right ofdefence without premeditation, and without any intention of doing more harm than isnecessary for the purpose of such defence.”3“Exception 4.-Culpable homicide is not murder if it is committed without premeditation in asudden fight in the heat of passion upon a sudden quarrel and without the offender's having14Page 1529. Mr. Sushil Kumar, the learned senior counsel for the appellant, arguedthat since the evidence states that the shot was fired from a distance andthe deceased was on top of the appellant in the course of the scuffle duringwhich he was being strangulated, the fatal shot could have only been firedby Pritpal Singhal. According to the learned counsel, he was the only otherperson who had a gun and had every reason to exercise the right of privatedefence to protect his son from strangulation.30. It is not possible for us to accept the argument that merely becausePritpal Singhal had a gun, and that he could have used it to save his son, hefired the shot. There is no foundation in the evidence of any of thewitnesses to suggest that Pritpal Singhal fired at the deceased-ShyamSunder from any place in the room to save his son. Even otherwise,shooting at two people grappling on the floor would have been a risk sincethe shot could have injured either or both persons. It is therefore, notpossible for us to accept this submission.31. The strong possibility is that there was a scuffle in which the appellantwas pinned to the floor and attempted to be strangulated by the deceased.The appellant may have pulled out his gun and upon seeing the gun, thedeceased may have released the appellant and started running upon whichthe appellant fired the shot which hit him from the back side. This alsotaken undue advantage or acted in a cruel or unusual manner.”15Page 16explains the trajectory of the shot in which the bullet entered the body belowthe right shoulder, and travelled upwards without exiting.32. In these circumstances, we are of the view that Suresh Singhal isundoubtedly guilty of causing death to Shyam Sunder with the intention ofcausing death or of causing such bodily injury as is likely to cause deathand therefore guilty of the offence under Section 304 of the IPC. We areinformed that the appellant has already undergone a sentence of 13 ½ yearsas on date. We thus sentence him to the period already undergone.KISHAN LAL’S DEATH33. The appellant has also been convicted under Section 302 IPC for themurder of Kishan Lal. Hans Raj (PW-3) deposed that the appellant fired athis brother, and when he (PW-3) and his brothers-Raj Kumar and Kishan Lal,tried to catch hold of the appellant, the appellant told his father to finish allthe brothers. He then stated that Pritpal Singhal took out a revolver fromhis pocket and both the appellant and his father started firing at him andhis brother-Kishan Lal. He stated that he received two bullets on hisstomach, and one bullet grazed him over the neck portion in the front.When he started running out, he was hit by another bullet on the back of hisright shoulder.16Page 1734. When he and Kishan Lal started running out, he heard Pritpal Singhaltell Roshan Lal to go outside, get the gun from the vehicle and that thefourth brother should not be spared.35. It may be remembered that this witness survived the shooting withtwo bullets still lodged in his body. The office in which the firing took placewas a small area. Yet this witness does not specify that the appellant shothim. He generally states that appellant and his father started firing athim and his brothers. Thus, it is difficult to say with certainty that the shotswhich hit Kishan Lal were fired by Suresh Singhal.36. In these circumstances all that can be said is that a shot from theappellant may have hit Kishan Lal or may not have hit Kishan Lal. Thisbenefit of doubt in law must go to the appellant.37. For the reasons stated above specifically that Hans Raj (PW-3) did notspecify that the appellant shot him. There is a serious doubt whether it canbe held as having been proved beyond reasonable doubt that the appellantattempted to murder Hans Raj for which he has been convicted.38. It is not possible for us to approve the observation of the High Courtthat because Suresh Singhal and Pritpal Singhal were armed “it is onlythe appellant and/or his father late Pritpal Singhal who could be responsiblefor the firing resulting in the murder of late Kishan Lal and thedeceased-Shyam Sunder.17Page 1839. We have already held that the appellant killed the deceased in theexercise of the right of private defence. Pritpal Singhal may or may not haveacted out of the desire to protect Suresh. He did not share the sameintention as that of Suresh. It is not possible to attribute common intentionto kill the three brothers to both the appellant and his father.40. Hence, we allow this appeal partly and modify the impugned judgmentand order passed by the High Court to the extent that the conviction of theappellant – Suresh Singhal under section 302 IPC for murder of Kishan Lal isset aside and his conviction under section 304 IPC is maintained. Since theappellant has already undergone a sentence of 13 ½ years as on date, wesentence him under section 304 IPC to the period already undergone. Theappellant is in jail. He be released forthwith from the custody, if notrequired in any other case.….………………………………..J.[S.A. BOBDE]….………………………………..J.[L. NAGESWARA RAO]New DelhiFebruary 02, 2017